One of the more frequent questions that come up in our practice is whether a party can or should move out of the marital home before or during a divorce proceeding. The answer, unfortunately, is not a simple yes or no. And often it comes up after someone already has moved out!

Reasons why one might want to leave a marital home before or during a divorce are: physical and/or emotional abuse; infidelity; new employment; the emotional need to get away, etc. The are equally compelling reasons to stay in the home during divorce proceedings and perhaps live separately under the same roof, such as the financial considerations –savings offered by not having two residences, convenience; parental obligations or concerns about parenting. Each situation is different. It is wise not to be impulsive about the decision of whether to leave or stay. Consultation with an attorney is best, to learn fully what your rights and responsibilities are. At a minimum there are certain items, which must be considered,

Custody, In Loco Parentis and Reproductive Assistive Technology

With more couples building families through reproductive assistive technology, custody questions may become an issue if the original family is no longer is intact, if the parents never married, and/or if the non-biological parent did not adopt the child. More and more courts are being asked to determine custody in these cases. There are steps that couples can take to help avoid or minimize this intervention. The facts and result in a recent Pennsylvania case are instructive.

In the case of C. G. v. J.H., J.H. conceived a child by artificial insemination. C.G. and J.H. were not married and Florida (where they resided) did not recognize same sex marriage at that time. J.H. was the biological mother. The child, J.W.H. , was born in Florida in October 2006, while C.G. and J.H. were living together as a same-sex couple. C.G. and J.H. continued to live together for about five more years. The relationship, however, began to wane and J.H. moved with the child to a separate residence in Florida and then moved to Pennsylvania in July 2012.

About three years later, in 2015, C.G. petitioned the Pennsylvania Court for shared legal and partial physical custody, alleging that she, C.G. “also acted (and acts) as a mother to the minor child …[and] the minor child was conceived by mutual consent of the parties with the intent that both parties would co-parent and act as mothers to the minor child.” Since C.G, was not the biological parent, J.H. alleged that she did not have “standing” to bring the matter at all. Because the parties were not married at the time of conception, and because C.G. did not adopt the child, the trial court held extensive hearings looking into the roles of each party to determine whether there was sufficient status for C.G, to raise the claim for custody.

As might be expected, the testimony conflicted. Just as in a traditional custody case, the parties presented extensive evidence including who attended to the child’s “[p]hysical, [e]motional, and [s]ocial needs.” Testimony including facts of day-to-day life was considered by the judge, as were facts regarding decision-making about the child’s medical and educational needs, child care, financial support and other items.Continue reading

The Republican Tax Bill brings sweeping changes to the nation’s tax code. As the country adjusts to the revisions and comes to understand the implications, we take some time to highlight the immediate impact this law will have on families –both intact and those who are facing divorce. Follow this blog for more details later.

Revisions in the tax code will affect:

EDUCATION: 529 accounts are expanded to include private school and home schooling.

Currently families can save for children’s college education with the use of tax protected 529 accounts. In a 529 account your money grows free of any capital gains taxes and currently it can be withdrawn without any penalty to pay for higher education expenses. Under the new bill, the use for money in 529 accounts is expanded. You now will be able to withdraw up to $10,000.00 per child, per year, to pay for private school or for educational expenses that are used for home schooling. Money that is in a 529 account also may be rolled over to ABLE accounts, which are used for people with disabilities.

ALIMONY: Alimony is no longer deductible for the payor spouse and no longer taxed to the recipient spouse.

This change in the tax provision regarding alimony does not go into effect until 2019; however, parties in the midst of divorce must be aware of it now as it may have a significant effect on negotiations in equitable distribution agreements. Understanding the effect of this dramatic change in the tax implications of alimony is important. If you currently are receiving or paying alimony your agreement may be modified with certain specific language to comply with the new tax rule. Your attorney should have access to the modification language. Continue reading

After Gwyneth Paltrow announced her split from Chris Martin, the actress called the separation “conscious uncoupling.” This introduced couples to a more amicable way of divorcing. But are family lawyers ready for this concept?

We enter a marriage with great home and excitement. Love is over-powering and intoxicating. We plan and pull off beautiful weddings, and build homes, families, and careers. We believe we have found our soul mate and that this is forever. For a host of reasons, many who divorce never come to fully understand why the relationship fell apart. Depending upon who initiates the breakup, or how the marriage comes undone, it may feel like “the end.” Even today, when the divorce rate is close to 50%, divorce may feel shameful or like a personal failure.

There is no denying that going through divorce is one of the most difficult things that one may do in a lifetime. Personal resilience, family dynamics, friendships, finances, and community are challenged and tested. Depression is common. The sense of exposure, the ringless finger, and the fear of being poor or being single again is common. Like all things, however, the closing of one door allows another to open. While not easily visible—especially if the parting is not mutual—opportunity is there.

When can rent be charged to a Spouse living in the Marital Home Alone?

Spouses that have been displaced from their marital home during divorce proceedings may find themselves put in the position of paying for a home they have no ability to enjoy. This commonplace situation has led to a general rule in Pennsylvania Courts that a dispossessed party can claim a credit for the fair rental value of marital property which is jointly held against the spouse in possession at the time of equitable distribution. See Middleton v. Middleton. Effectively, they can charge the spouse enjoying the marital home rent for the time that spouse spends in exclusive possession of the property. However, this general rule is firmly within the discretion of the court to award, and is subject to further restrictions in order to adjust to the specific circumstances of the parties.

Factors affecting Rental Credit Awards:

To the extent a rental credit may be awarded, it is limited by the amount in which the dispossessed spouse had a personal or financial interest in the property. In Lee v. Lee, this caveat allowed a Wife who used premarital funds to buy and eventually re-finance the marital home to undermine her Husband’s interest in the home, and therefore whether the amount of rental credit due, if any.

Another central factor in determining the amount of credit is the period of time the spouse was dispossessed and the other spouse was in possession (actual or constructive), of the property.

Additionally, the credit is subject to an allocation for any expenditures made by the possessing spouse in order to maintain the property on behalf of both spouses. This includes repairs or any contributions towards mortgage and tax obligations for the home.

Another crucial factor requires that the party have an actual right to be physically present in the home. Regardless of legal title, if one party has been excluded from the home pursuant to a PFA Order, the court ruled in Lee that they are not entitled to a rental credit for the time the Order has excluded them, regardless of whether or not they were already dispossessed prior to the issuance of the Order.

Again, this is a circumstance-specific analysis, and one party’s superior financial obligations will not necessarily support a rental credit award. In Schneeman v. Schneeman, the court denied a credit notwithstanding that the dispossessed spouse paid the mortgage, insurance, and taxes. This is because the possessive spouse received a deviated amount of spousal support during this period, which the court considered an indirect contribution to the expenses. In Lee, the court viewed the fact that the Wife initially urged the Husband to vacate the premises sooner rather than later weighed in favor of granting the husband a rental credit.

What about other people living in the house with my spouse?

As a rule, no rental credit will be awarded when a minor child is living in the marital home. The general rental credit rule, however, has interesting effects in practice when the court considers the relevance of other solvent adults- typically the parties’ adult children- living in the marital property. Judge will look at the specific facts when considering whether a non-resident party is entitled to a credit for allowing the parties’ adult children to live in marital rental property. The surrounding circumstances of the litigation must support a credit considering the relative economic positions of the parties, and courts may not be inclined to allow the credit absent a showing of need or extenuating circumstances. Continue reading

This is a question asked frequently when a divorce is dragging on. Divorces can be drawn out because the parties are unable to reach agreement, because of prolonged litigation, because one party refuses to “come to the table,” or for numerous other reasons. When this happens it can feel very unfair for either or both parties. We have heard it described as “being held hostage in a dead marriage.” If the animosity between the parents continues unabated for a long period of time the prolonged process also can have a detrimental impact on children.

The Pennsylvania Divorce Code provides relief in such circumstances, allowing spouses to get divorced without final resolution of all property issues. The procedure is called a “bifurcated divorce.” The bifurcation process allows parties to get divorced, move on and re-marry if they wish, while the economic issues of the marriage are pending. Protections for the dependent spouse and minor children must be in place until the case is fully resolved.

Bifurcation is considered an unusual proceeding, and can be granted only upon Order of Court. A judge makes the final determination to grant a bifurcation, and does not have to agree even if both parties want the divorce before they distribute all of their assets and liabilities. Continue reading

The old saying goes that marriage is about love and divorce is about money. No matter how wonderful your marriage is, it is a good idea to be knowledgeable about your assets and debts. No matter how amicable you think your breakup may be, don’t underestimate the importance of protecting yourself and your future financial wellbeing. This is not as crude as it sounds. The sooner you start seeing yourself as a competent, strong, and self-sufficient individual, the healthier you may feel and, more likely than not, the smoother any divorce process may be.

So here are some quick tips…

Learn about your finances– gather as much information as you can about your assets and debts. If you are the one who pays all the bills, does the investing, and manages the money, this is easy. If you are not that person, then start learning…quickly! It is not an excuse to say, “I don’t know …She pays all the bills.” Gather documents. Get photocopies of 3-5 years of the last filed tax returns; all recent bank, investment, retirement and credit card statements. Keep these documents in a safe place and update them regularly.

This is a good question asked by many. The marital home usually is a significant part of your total marital estate. For most couples, Husband and Wife hold the mortgage and the deed to the marital jointly. The issue of removing one party from the mortgage (and later the deed) for most clients arises when one spouse has moved out of the house, and the other spouse is living in the marital residence. The resident spouse likely is responsible for paying the mortgage. The no longer resident spouse now wishes to be removed from the mortgage and the responsibility for the payments because he/she no longer lives in the home. However, as long as both spouses maintain a financial interest in the equity in the home, responsibility for the mortgage cannot be relieved. Thus, it is important to monitor payment of the mortgage to ensure that the responsible party is keeping up with payments. If the mortgage falls behind, the non-resident spouse can reserve the option of taking over payments, and seeking reimbursement for those payments at the time of equitable distribution of the full marital estate.

Until recently if one party to a marriage would not consent to a divorce in Pennsylvania there was a mandatory two year waiting period before the moving party could proceed with a divorce. On October 4, 2016, Governor Wolf signed House Bill 380, which reduces the waiting period from two years to one. The new law goes into effect this December 2016.

This law is a major victory for parents and children in Pennsylvania. Divorce, as we have written here previously, is one of the most stressful times in the life of a family. It can be a time of uncertainty, anxiety, anger, fear and depression. Children may be confused and scared. A prolonged waiting period between unhappy parents can have serious detrimental effects upon spouses and the children who may bear witness to fighting and experience instability.

The original legislative intent behind a waiting period was for family reunification. Our lawmakers felt that a longer waiting period would encourage reconciliation. They respected keeping families together, and did not want to be quick to endorse family break up. In reality, their intention was not realized.

By the time one party makes the heart wrenching decision to consult an attorney and proceed with a divorce filing, the likelihood of a family reunification is almost nil. Continue reading

Child support is determined by a formula in Pennsylvania. This formula can be found in the Pennsylvania Child Support guidelines. Support generally is based upon determinable factors, such as: each party’s income or earning capacity, contributions to care, payment for health insurance, and the amount of overnights the child(ten) spend with a parent. Other factors may also affect the amount of child support. What constitutes income is defined in the Pennsylvania Code at 23 Pa.C.S.A. §4302. When the Pennsylvania legislature enacted guideline provisions to determine the amount that parents are responsible to pay to support their children, it was with the intent to create uniformity and reduce conflict around this issue. Yet, child support remains a hot button for many. In part, this is because even with guidelines, there remain grey areas about what income may be available for support, thus affecting what one parent may owe the other.

Remarried Parent May Have More Income to Support Children

For single parents sharing custody and support with a parent who has remarried, the burden may feel unequal. In certain circumstances looking into the lifestyle of the remarried parent, particularly what he/she pays for in the new marital residence, can support the basis for a request for higher child support. In a recent opinion, the Pennsylvania Superior Court allowed the single parent to receive an upward calculation to child support because Father had greater ability to support his children than what the guidelines would provide given his earning capacity. The court found that all of Father’s income was available for support. The guidelines take into consideration living costs and expenses, and generally only use the after tax income of the child’s parents and not the income of step parents. However, the law does permit the court to include other household income.

In the case of J.P.D. v. W.E.D.. 114 A.3d 887 (Pa. Super. 2015), the parents initially disputed the earning capacity of Father. Father’s expert testified that his earning capacity was $45,725. and Mother’s expert testified that Father’s earning capacity was $70,833. The Court credited Father’s expert on earning capacity, but gave an upward deviation to Mother that was greater than 100% of actual child support guideline amount, based upon testimony at the trial that Father’s new wife paid all the household bills and expenses.

Father’s new wife had an annual income of approximately $1,000,000. Father did not pay for any of his own expenses, including mortgages, car payments, utilities or entertainment. The re-married father’s new wife had full control over household expenses and provided for all of father’s needs. Father and his new wife owned the house in which they lived, a weekend getaway house, and another property to be developed. Father leased a Cadillac for $940 a month and traveled and vacationed frequently. The Court found that since Father’s new wife provided for all of Father’s needs, all of his income was available for child support for his two children from the previous marriage. As a result, his child support order was for twice the amount ordinarily calculated under the guidelines. Continue reading